Ex-police officer’s appeal on data protection conviction dismissed

A former police officer convicted of data protection offences who claimed he had been persecuted due to a “malicious and vindictive desire to punish” him has had his appeal dismissed by the Court of Appeal.

Former RGP officer Anthony Bolaños was fined £1000 last year after a week-long Supreme Court trial and appealed his convictions for charges of unlawfully retaining personal data and unlawfully disclosing personal data, namely a police wanted notice.

The appeal was dismissed on all 15 grounds by Court of Appeal judges Sir Patrick Elias, Sir Nicholas Underhill and Sir Nigel Davis, who set out their reasons in a 50-page document published this week.

Defence lawyer Ben Cooper, KC, had submitted to the court that the police had acted “vindictively and out of malice” because Bolaños was set to give evidence against the RGP in a judicial review hearing concerning the alleged illegality of certain search warrants executed in 2021.

Mr Cooper argued there was a failure to notify the court of this and that it was “inevitable” that there would be privileged material found in the search.

But the court heard how these submissions had not been raised during the trial.

“We categorically reject that submission,” the judgement said.

“These are highly contested issues going to the integrity of police officers. The trial would no doubt have taken a different course if they had been pursued with the judge. We cannot possibly take account of these arguments now.”

The Court of Appeal added that if the “dominant motive was indeed a malicious and vindictive desire to punish”, then this would “constitute misconduct of the kind which is capable of undermining confidence in the justice system.”

Mr Cooper claimed there had been “other vindictive acts” against his client and family.

If these were true, the judges said, they would “reinforce suspicions about the true motives of the police”.

“But suspicion cannot be enough,” they added.

The judges said that “no such conclusion can possibly be reached unless the motives are tested” and any alleged wrongdoers have a proper opportunity to meet the case against them.

“Basic fairness requires no less,” the judges said in a judgment prepared by Sir Patrick and agreed by all three.

“Alleging malicious or vindictive motive is a very serious charge; it cannot, in my view, be established by inference from the bare uncontested facts as to the circumstances in which the Appellant was prosecuted; even less can it be inferred to be the dominant motive of the officers involved.”

“Even apparently well-founded suspicions may prove to be wholly without foundation when the evidence is properly tested.”

Bolaños had alleged that in October 2015 he discovered that the police had unlawfully placed a pin-hole recording device in the New Mole House Police Station conference room which was used by lawyers for privileged discussions with clients.

Bolaños had taken a photograph of the device with his work phone and subsequently transferred it to his private phone. At the time, Bolaños said he had also made contemporaneous notes in a police notebook about this.

The RGP said they suspected that the evidence was “untruthful” and that the photographs of the notes were not contemporaneous but had been fabricated later.

The crux of the trial was that when police searched Bolaños phone in relation to this incident, officers instead found a wanted notice which was contrary to data protection policy.

During the trial Bolaños had claimed that he received the data unsolicited but accepted that he had retained the wanted notice until forwarding it later that day to the senior partner in Hassans law firm, James Levy, KC, who Bolaños said was his lawyer.

Bolaños also accepted that by forwarding the document to Mr Levy, that constituted a disclosure.

Given these admissions, the judges said, Bolaños’ only defence was whether he believed that he had a legal right to act as he did.

Mr Cooper had claimed that the wanted notice was protected by legal professional privilege.

He submitted that his client had forwarded it to his lawyer Mr Levy and was being persecuted because he had “revealed wrongdoing in the force”.

A legal privilege claim, the judges said, would have meant that evidence to show the personal data had been forwarded to Mr Levy would have been excluded from the jury and there would have been no basis for a conviction on the disclosure count.

While defence lawyers at the time had discussed the issue of legal advice privilege with the trial judge, no application was made and that was “obviously a deliberate decision,” the judgement said.

The appeal judges rejected this submission.

“I do not think that the only possible reason for contacting Mr Levy must have been to seek legal advice, although I accept that there was a real issue as to whether it was the reason,” the judgement said.

The judgement added that if privilege had been claimed it is expected Bolaños would have been cross examined on this point.

The judges said Bolaños’ answers to the jury for forwarding the wanted notice to Mr Levy were “somewhat equivocal”.

“Nor in my view can it be inferred that the reason for not prosecuting Mr Levy was that he would be able to claim privilege for the document; there could have been many other reasons,” the judgement said.

The Court of Appeal dismissed the appeal on all grounds

Ben Cooper KC and Shane Danino represented Mr Bolanos.

Christina Wright appeared for the Crown.